Citation Nr: 21025811 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 07-32 645 DATE: April 29, 2021 REMANDED Entitlement to service connection for a recurrent headache disability is remanded. Entitlement to a rating in excess of 10 percent for right medial tibial plateau stress fracture residuals with right knee disability prior to August 22, 2018, is remanded. Entitlement to a rating in excess of 30 percent for right total knee replacement residuals from October 1, 2019, to October 30, 2019, and on and after December 1, 2020, is remanded. Entitlement to a rating in excess of 10 percent for left medial tibial plateau stress fracture residuals with left knee disability is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from July 2003 to March 2004. In April 2015, the Board of Veterans’ Appeals (Board) denied increased ratings for right medial tibial stress fracture residuals with right knee disability and left medial tibial stress fracture residuals with left knee disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2015, the Court granted the Parties’ Joint Motion for Partial Remand; vacated those portions of the April 2015 Board decision which denied increased ratings for the service connected right lower extremity and left lower extremity disabilities; and remanded the issues to the Board for further action consistent with the Joint Motion for Partial Remand. In March 2016, the Board again denied increased ratings for right medial tibial stress fracture residuals with right knee disability and left medial tibial stress fracture residuals with left knee disability. The Veteran subsequently appealed to the Court. In September 2016, the Court granted the Parties’ Joint Motion for Remand; vacated the March 2016 Board decision; and remanded the issues of increased ratings to the Board for action consistent with the Joint Motion for Remand. In April 2017, the Board remanded the issues of increased ratings for the service connected right medial tibial stress fracture residuals with right knee disability and left medial tibial stress fracture residuals with left knee disability to the Agency of Original Jurisdiction for additional development. In November 2018, the Agency of Original Jurisdiction recharacterized the service connected right lower extremity disability as right total knee replacement residuals and assigned a 100 percent rating from August 22, 2018, to September 30, 2019, and a 30 percent rating on and after October 1, 2019, for that disability. In February 2020, the Agency of Original Jurisdiction assigned a 100 percent rating from October 31, 2019, to November 30, 2020, and a 30 percent rating on and after December 1, 2020, for the right total replacement residuals. 1. Entitlement to service connection for a headache disability is remanded. In its July 2020 Remand instructions, the Board instructed the Agency of Original Jurisdiction to “obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s headaches are at least as likely as not (50 percent probability or greater) proximately due to or aggravated beyond their natural progression by a service-connected disability” and “the opinion must reflect consideration of the Veteran’s reports that his headaches tend to coincide with his tinnitus and worsen as the tinnitus worsen.” The report of an August 2020 Department of Veterans Affairs (VA) headache examination states that the Veteran was diagnosed with migraine including migraine variants. The examiner concluded that the “Veteran’s headaches are less than likely as not (less than 50 percent probability) proximately due to or aggravated beyond their natural progression by a service connected disability;” “Veteran’s headaches are less than likely as not aggravated beyond their natural progression by his service connected tinnitus;” “after reviewing history, physical exam, e folder in VBMS, VA treatment records, and medical textbook, tinnitus is not one of the etiology of migraine attack;” and “also there is no evidence of permanent aggravation of migraine headache as per current exam.” The examiner did not note or otherwise address “the Veteran’s reports that his headaches tend to coincide with his tinnitus and worsen as the tinnitus worsen.” The Agency of Original Jurisdiction’s compliance with the Board’s remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, further VA headache evaluation is required. 2. Entitlement to a rating in excess of 10 percent for right medial tibial plateau stress fracture residuals with right knee disability prior to August 22, 2018; a rating in excess of 30 percent for right total knee replacement residuals from October 1, 2019, to October 30, 2019, and on and after December 1, 2020; and a rating in excess of 10 percent for left medial tibial plateau stress fracture residuals with left knee disability is remanded. The report of a December 2020 lower extremity examination conducted for VA states that the Veteran exhibited a right knee range of motion of 0 to 80 degrees with pain on flexion and extension and a left knee range of motion of 0 to 100 degrees with pain on flexion and extension. The examiner commented that the Veteran was “unable to stand and walk for long time because of pain.” The nurse practitioner did not indicate the degree at which the Veteran experienced pain on motion of the right knee and the left knee. In light of such deficiency, the Board finds that the functional loss associated with the service-connected right lower extremity and left lower extremity disabilities is unclear and the examination report is of limited probative value. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). VA has recently amended that portion of 38 C.F.R. Part 4 which pertain to musculoskeletal disabilities. On February 7, 2021, the provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5257 pertaining to knee replacement and resurfacing and knee impairment were amended. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5257). VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that further VA lower extremity evaluation is needed. Clinical documentation dated after December 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran’s claims. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 3. Entitlement to a is remanded. Entitlement to TDIU requires an accurate assessment of the impairment associated with all of the service-connected disabilities. As the claim for TDIU is inextricably intertwined with other claims being remanded, the issue of entitlement to a TDIU must also be remanded. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who treated him for any headache disability and the service-connected right knee and left lower extremity disabilities. Make two requests for the authorized records from all identified healthcare providers unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA clinical documentation not already of record, including treatment records dated after December 2020. 3. Schedule the Veteran for a VA headache examination conducted by an appropriate physician to assist in determining the nature and etiology of any diagnosed headache disability and any relationship to active service. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Diagnose all recurrent headache disabilities found. (b) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified headache disability had its onset during active service or is related to any incident of service. (c) Opine whether it is at least as likely as not (50 percent probability or greater) that any identified recurrent headache disability is due or caused by tinnitus and the other service-connected disabilities. The examiner must expressly discuss the Veteran’s competent statements that “his headaches tend to coincide with his tinnitus and worsen as the tinnitus worsen.” (d) Opine whether it at least as likely as not (50 percent probability or greater) that any identified recurrent headache disability has been aggravated (increased in severity beyond the natural progress of the disorder) by tinnitus and the other service connected disabilities. The examiner must expressly discuss the Veteran’s competent statements that “his headaches tend to coincide with his tinnitus and worsen as the tinnitus worsen.” 4. Schedule the Veteran for a VA examination conducted by a medical doctor to assist in determining the current nature and severity of right total replacement residuals and left medial tibial plateau stress fracture residuals with left knee disability. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should: (a) Provide ranges of motion for weight-bearing and nonweight-bearing and passive and active motion of both lower extremities including the knees. The examiner should specifically indicate the degree at which the Veteran experiences pain on motion of the right knee and the left knee. (b) State whether there is any additional loss of function of the lower extremities, including the right knee and the left knee, due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c) State whether there is any recurrent lateral instability or subluxation of the knees and, if so, the severity of any instability or subluxation. (d) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service connected right knee and left lower extremity disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. J. T. HUTCHESON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.